MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 6 February 2003
         DOCKET NUMBER: AR2002077431

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Walter Avery, Jr.		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. James E. Anderholm		Member
Ms. Eloise C. Prendergast		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: The backdating of his sergeant first class (SFC) date of rank to 1 May 1997, he receives back pay and consideration for promotion to master sergeant by a standby advisory board.

APPLICANT STATES: In effect, that because of recruiter shortages at the time his attendance at advanced noncommissioned officer course (ANCOC) would have been a hardship on the recruiting battalion. An excuse was needed to keep him from attending ANCOC; therefore, he was found not in accordance with the Army weight policy by the battalion staff and flagged on 21 May 1997. He was not allowed to attend his scheduled ANCOC on 28 May 1997. This resulted in him being titled a "No Show" and the revocation of his SFC promotion orders. He questions why all previous body fat measurements conducted by the company indicated he was 1% below the maximum, yet he failed when measured by the battalion staff? He was found in compliance on 4 June 1997-four working days after the start of his ANCOC.

COUNSEL CONTENDS: Counsel is listed but no statement is provided.

In support of his request he provides a copy of Change 101 to Army Regulation (AR) 600-8-19 and a commander's inquiry (CI). Change 101 reflects changes paragraph 4-18b. The title of paragraph 4-18b is Rules for Processing Command Initiated Removals and it instructs that soldiers will be allowed to respond to the proposed action, and may submit a rebuttal within 15 working days.

The CI was prepared on 14 January 1998 containing several sworn statements. The investigating officer (IO) noted that in October 1996, the applicant was conditionally selected for promotion. He was scheduled to attend ANCOC on 28 May 1997. On 29 April 1997, the applicant passed a weigh in/tape test given by the company. On 1 May 1997, the applicant was promoted conditionally to SFC. The IO states that the applicant was told by the battalion sergeant major that he had one year from his promotion to attend ANCOC and not to worry about it. On that same day the applicant failed to pass the weigh in/tape-test. The applicant was retested on 12 May 1997 and again failed. He was then informed he would not be allowed to proceed to ANCOC on 28 May 1997. The IO found that the entire chain of command and the soldier were unaware of Message 94-24, which established the linkage of NCOES to promotion for ANCOC. Another finding was that the procedures of Army Regulation 600-8-19, paragraph 4-18 were not properly followed.

Several sworn statements were enclosed with the CI. Most spoke to the fact that they believed the applicant was not given a full 12 months to meet the ANCOC standard. The applicant in his sworn statement stated he felt his previous battalion commander and sergeant major told him what they thought would keep him recruiting and they were not concerned with the possible far reaching and long lasting effects it would have on his career. He thought the battalion commander and sergeant major were concerned with how it would reflect on them if he did not get through ANCOC because of recent failures at schools by other attendees from the battalion. He believes he had been lied to and misled.

EVIDENCE OF RECORD:

He enlisted in the Regular Army on 19 May 1988. He was promoted to staff sergeant (SSG), on 1 February 1993. He currently is a SFC on active duty.

On 9 April 1997, promotion orders were issued promoting the applicant to SFC with a date of rank of 1 May 1997, under the authority of AR 600-8-19, paragraph 4-7 and Message 071700Z October 1993. Included on the orders were instructions that SSGs promoted to SFC who do not have ANCOC credit are promoted conditionally. Those soldiers who receive a conditional promotion will have their promotions revoked and their names removed from the centralized list if they fail to meet the ANCOC requirement.

On 15 August 1997, the US Army Total Army Personnel Command (PERSCOM) notified the applicant that based on AR 600-8-19, paragraph 4-18 as superseded by Interim Change 101, his name had been administratively removed from the list and his promotion to SFC revoked. The action was based on his failure to attend ANCOC in the year schedule.

He was again selected for promotion and ANCOC attendance. He was promoted to SFC on 1 May 2000 and completed ANCOC on 22 November 2000.

Military Personnel Message Number 94-24, 071700Z October 1993 was released announcing the linkage of NCOES to promotion. It advised that promotion to SFC was conditional. That soldiers who accept a conditional promotion, and are subsequently denied enrollment, are declared a "No Show," will have their promotions revoked and removed from the centralized promotion list.

In the processing of this case, an advisory opinion was obtained from the Promotions Branch, PERSCOM. It stated the applicant's promotion orders were revoked, based on the applicant's failure to attend his scheduled ANCOC due to his failure to meet the height and weight standards of AR 600-9. In accordance with AR 600-8-19, paragraph 4-7, his name was administratively removed from the promotion list. The applicant did not request nor, was he ever reinstated to ANCOC following the revocation. That office opined that to backdate the applicant's SFC date of rank would afford him an unfair advantage not given to other soldiers.




A copy of the advisory opinion was provided to the applicant for comment or rebuttal. He responded, in effect that disagrees with the statement in the advisory that he did not request reinstatement to ANCOC. He did inquire on how to get a new ANCOC attendance date. He was told by a sergeant major and a command sergeant major that he had a year to get a new attendance, but he needed to get in accordance with AR 600-9. In addition, he points out that AR 600-8-19, Chapter 4, Section V, paragraph 4-17, Table 4-4, step 7 states: "The soldier will be allowed to respond to the proposed action and may submit a rebuttal within 15 days after receipt of the written notification." He was never informed orally in or in writing that he was being processed for removal from a centralized promotion list.

Change 101 to AR 600-8-19, (Enlisted Promotions and Reductions) dated 8 April 1994, provides, in pertinent part in paragraph 4-7 that effective 1 October 1993, a SSG must be a graduate of an ANCOC prior to promotion to SFC, but permits a conditional promotion contingent upon the successful completion of the required level of NCOES. It further warns that said soldiers will have their orders revoked and their names removed from the centralized list if they fail to meet the NCOES requirement.

AR 351-1 (Individual Military Education and Training) provides in pertinent part, that ANCOC training prepares Department of the Army selected SSG and SFC for leadership positions at platoon sergeant level. The course provides a common leadership core of instruction and military occupational specialty specific skill training. Training at the ANCOC level emphasizes the skills that complement the NCO's commissioned officer counterpart. ANCOC and the Officer Basic Course are linked through common doctrine focused on the roles of officers and NCOs on the battlefield at platoon level. ANCOC is conducted in a live-in environment at NCO academies collocated with the proponent service school. Course lengths vary by military occupational specialty.

AR 614-200 (Enlisted Assignments and Utilization Management) provides, in pertinent part, that soldiers must meet the prerequisites contained in Department of the Army Pamphlet 351-4 to attend a service school, to include ANCOC. Department of the Army Pamphlet 351-4 is the U.S. Army's Formal Schools Catalog.

AR 600-9 (The Army Weight Control Program) provides, in pertinent part, that each soldier is responsible for meeting the standards prescribed in this regulation.




DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion, it is concluded:

1. Since the announcement of the policy in 1993, the Army’s guidance in this matter is clear; failure to attend ANCOC will result in a soldier's removal from the centralized promotion list. The information is printed on the very orders that authorize the promotion. The importance of conditionally promoted NCOs completing ANCOC standard was given extensive coverage so much so that PERSCOM has been consistent in its denial of requests for reinstatement to ANCOC based on administrative mistakes by NCOs or their unit.

2. One of the applicant's primary contention is that the command did not properly follow the procedures as outlined in AR 600-8-19, paragraph 4-17. Paragraph 4-17 pertains to soldiers who were promoted and their command is initiating action to remove them because they committed a derogatory action. The applicant was removed under the authority of paragraph 4-7, which contained similar language as cited on his promotion order instructing that he was conditionally promoted under the authority governing the linkage of promotion and ANCOC and forewarns the actions taken for failure to meet the ANCOC requirement. When the applicant was denied attendance to ANCOC he failed to meet the ANCOC requirement. There is no regulatory basis to provide a 15 day rebuttal period for conditionally promoted soldiers who fail to meet the ANCOC requirement. The applicant has not shown that the decision not to allow him to attend ANCOC on 28 May 1997, after a failure to meet the weight standard was unfair or unjust.

3. The applicant contended he was told and he believed that he had 12 months after promotion to attend ANCOC. The applicant was obligated to meet the 28 May 1997 ANCOC class date once he was officially notified. In addition, meeting the Army's weight standards is an individual responsibility and is not linked to the attendance to ANCOC. That is the applicant, as a soldier, had an ongoing responsibility to meet this standard regardless of whether or not he was scheduled to attend ANCOC or believed he had a year to attend. It was his second failure to meet the weight standard that led to the command reporting to PERSCOM that he was ineligible to attend ANCOC.

4. Lastly he implies that the decisions of the battalion commander and sergeant major were influenced by a shortage of recruiters and they took action to delay his attendance to ANCOC. The applicant submits no evidence to support this serious accusation.




5. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

6. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__jea____ ___ecp__ ___fne___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002077431
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020204
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.131.10
2.
3.
4.
5.
6.